Judicial Vacancies

Overview

Our nation is disadvantaged when our federal judiciary does not have sufficient judges to hear cases and resolve disputes in a thorough and timely fashion. Over 400,000 cases are filed in federal district courts and courts of appeals each year. These cases include discrimination and civil rights claims, criminal prosecutions, environmental and consumer protection litigation, challenges to government power, and lawsuits to hold corporations accountable for wrongdoing. When there are insufficient judges to handle the workload, resolution of these important kinds of cases is delayed. Persistent vacancies in a busy court increase the length of time that litigants and businesses wait for their day in court, create pressures to “robotize” justice, and increase case backlogs that perpetuate delays in the future. To further add to the strain on the federal judiciary, dozens of new judgeships are needed, according to the Administrative Office of the U.S. Courts. (On March 19, 2015, the Judicial Conference submitted its request for 73 new judgeships and the conversion of nine temporary ones into permanent judgeships, but Congress has not acted on it.) These pressures, if left unchecked, inevitably will alter the delivery and quality of justice and erode public confidence in our federal judicial system.

The president and the Senate have a constitutional responsibility to nominate and confirm judges to the Article III courts. Despite the political nature of the process, this shared duty needs to be carried out with bipartisan cooperation out of respect for the role of the judiciary in our government and our daily lives.

113th Congress: Filibuster Rule Change and Recap

Halfway through the 113th Congress, then-Majority Leader Harry Reid invoked the “nuclear option” to change the Senate Rules regarding filibusters by simple majority vote rather than the normally required supermajority of 67 votes. The rule change gutted the threat of the filibuster by lowering the threshold for cloture on all executive branch and judicial nominees except for Supreme Court nominees from 60 votes to a simple majority. The change to the filibuster rule resulted in a flurry of confirmations during the remainder of the Congress, which significantly reduced the number of vacancies by the end of the Congress. Even though the filibuster rule change guaranteed that Democrats could invoke cloture and schedule floor votes, Republicans nonetheless made Senator Reid file a cloture motion on every nomination brought to the floor. The Filibuster rule change dramatically increased discord and partisanship and set the stage for what many have called “payback” time during this 114th Congress.

Total Confirmations – 2218 – district courts2 –courts of appeals2 – Court of International Trade

Judicial Emergencies – 38 7– Courts of Appeals31 – District Courts

*Tally does not include one nomination for the territorial District Court of Guam.

114th Congress: Significant Events and Issues

First Session

When the 114th Congress convened on January 6, Senators returned to a chamber controlled by Republicans (54 Republicans, 44 Democrats, and 2 Independents who caucus with the Democrats) and a Senate Judiciary Committee chaired by Senator Grassley, a non-lawyer.

Senator Grassley outlined his approach to judicial confirmations in his home state papers soon after the Midterm Elections. He said that the Senate Judiciary Committee “should not be a rubber stamp for the president.” He stated: “Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence. Judges are to decide cases and controversies —not establish public policy or make law.”

During the first three months of the session, the Senate failed to hold any confirmation votes, even though five of the six pending nominees were slated to fill judicial vacancies in Utah and Texas, states with two Republican Senators. The lack of action and concern over the growing backlog of civil lawsuits prompted the Wall Street Journal to run a cover story about it on April 7, 2015.

The first confirmation occurred on April 13, when Alfred Bennett, originally nominated in the 113th Congress (September 2014) to the District Court of the Southern District of Texas, was confirmed by a vote of 95-0. During the rest of the Session only nine additional district court judges and one appellate court judge were confirmed. Excessive delays followed by unanimous confirmation votes all session confirmed concerns that Senate Majority Leader McConnell had decided to slow-walk the process this Congress, not because of concerns over the qualifications of the nominees, but because of outrage over the filibuster rules change foisted on Republicans during the prior Congress when the Democrats were in control of the Senate. (*See Historical Note, below, for additional information on the filibuster rule change.)

In December 2015, ABA president Paulette Brown wrote Senate leaders urging them to put the needs of the courts first and confirm of nominees pending on the floor prior to adjournment of the 1st Session. While the Senate confirmed only one additional nominee in December, Senate leaders did make modest concession, agreeing to not return pending nominees and to vote on five specified nominees early in the next session.

In sum, there were 45 vacancies at the start the 1st Session and 66 vacancies at adjournment. During the Session, President Obama made 42 nominations (12 of whom were renominated from the previous Congress), and the Senate confirmed 11 nominees − 10 to the district courts and one to the Court of Appeals for the Federal Circuit.

Second Session

Unexpected Supreme Court Vacancy

On February 13, 2016, Justice Antonin Scalia died unexpectedly. Within hours, Senate Majority Leader McConnell issued a short statement that concluded by stating: “The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”

This unleashed a torrent of partisan debate and comments from pundits, academics, editorial boards, organizations, past government officials and other Members of Congress. Senator Grassley at first appeared to waver over how the Senate Judiciary Committee would proceed, but he quickly fell in step with the Majority Leader as evidenced by his letter that was cosigned by all of his Republican colleagues on the Committee and sent to the Majority Leader on February 15. It stated in part:

Given the particular circumstances under which this vacancy arises, we wish to inform you of our intention to exercise our constitutional authority to withhold consent on any nominee to the Supreme Court submitted by this President to fill Justice Scalia’s vacancy. Because our decision is based on constitutional principle and born of a necessity to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.

In response, Democrats on the Committee sent a joint letter urging Grassley to reconsider his position.

A few days later, an opinion piece in the Washington Post that was jointly signed by Senator Grassley and the Majority Leader further solidified their stance and advanced arguments that became talking points that Republicans have used consistently to justify their refusal to take any action on the Garland nomination during this Congress. Their opinion piece concludes by stating, “It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia.” This statement clearly is not supported by the U. S. Constitution.

President Obama Makes Supreme Court Nomination

On March 16, President Obama nominated Merrick Garland, Chief Judge of the U.S. Court of Appeals for the District of Columbia to be associate justice of the U.S. Supreme Court. Judge Garland was confirmed to the DC Circuit Court on a vote of 76-23 in 1997 and has served as its Chief Judge since February 2013.

The ABA’s Standing Committee on the Federal Judiciary, which evaluates and rates the professional qualifications of nominees to the Article III and Article IV federal courts at the request of the administration, released its rating (and written statement) of Judge Garland on June 21. The Standing Committee concluded: “Merrick Garland is a preeminent member of the legal profession with outstanding legal ability and exceptional breadth of experience. He meets the very highest standards of integrity, professional competence and judicial temperament. It is the unanimous opinion of Standing Committee that Judge Garland is “Well Qualified” to serve as Associate Justice of the Supreme Court of the United States.”

Congressional Response to the Garland Nomination

Even though there is no doubt that Judge Garland commands the respect of Democrats and Republicans alike, Senate Republican leadership has refused to discuss the nominee’s eminent qualifications, instead keeping the focus on why they do not intend —and do not think they have an obligation -- to take action. The vast majority of Republican senators are speaking from these same talking points. Only a handful have departed from the party line and publicly stated that Judge Garland should at least receive a confirmation hearing.

Activity on Lower Court Nominees

During the first two months of the 2nd Session, Senate leaders adhered to the agreement worked out at the end of the 1st Session, allowing up-or-down votes on five nominees, including Luis Felipe Restrepo to the Third Circuit, prior to the Presidents’ Day recess. All five were confirmed with overwhelming votes of support.

After the death of Justice Scalia, Senate activity on nominees came to a halt for almost two months The Senate Judiciary Committee started back to work on April 7, when it reported three nominees to the Senate by unanimous voice vote, and the Senate finally took action on April 11, when Waverly Crenshaw Jr., whose nomination to the District Court for the Middle District of Tennessee had been pending on the floor for nine months, was confirmed by a vote of 92-0.

The Senate Majority Leader continued to slow-walk confirmation votes for the remaining months prior to the summer recess. Only one nominee was confirmed in May, three in June, and one in July. The Senate left town on July 25 for seven weeks without voting on the 22 nominees pending on the floor.

There is a widespread, and mostly incorrect, belief that a slowdown in judicial confirmations is to be expected in the last half of a presidential election year, a phenomenon dubbed the Thurmond Rule. However, confirmation activity in prior election years demonstrates that there is no pattern to when or how the Rule operates other than that it is invoked at the will of the Majority Leader and chair of Senate Judiciary Committee, and primarily results in a slow-down or cessation of circuit court confirmations. The Thurmond Rule fails to adequately explain McConnell’s insistence on slow-walking even the uncontroversial district court nominees supported by their home-state Republican senators.

The Senate returned on September 6 and recessed on September 29 for the elections. During the three weeks in session, the Senate Judiciary Committee reported three nominees to the Senate, but the Majority Leader refused to schedule any confirmation votes despite mounting pressure and criticism from even some Republican colleagues.

When the Senate left town for its final recess of this Congress, 91 Article III judgeships were vacant and 25 nominees were waiting for a floor vote, including seven slated to fill vacancies designated as judicial emergencies. Twenty–three of the pending nominees won the unanimous support of the Judiciary Committee, including eight from states with two Republican senators. At a time when the vacancy rate is alarmingly high, Senate inaction on fully qualified nominees who have resounding bipartisan support is indefensible.

Prognosis for Lame Duck Session and the 115th Congress

Now that Republicans have won the presidency and retained majority control of the Senate, hopes for action on the Garland nomination or confirmation votes on the nominees pending on the Senate floor have been dashed.

By the time the 115th Congress convenes January 23, 2017, there will be over 100 lower court vacancies. While there likely will be delays due to organizational issues at the beginning of the 115th Congress, with a united government, there will be less opportunity to obstruct action with regard to lower court nominees, Democrats could choose to slow down the process by demanding cloture votes or failing to return “blue slips,” for example, but they will be unable to prevent the confirmation of nominees that they find objectionable.

It is less easy to predict what will happen to a Supreme Court nomination, which may occur soon after the President–elect takes office. There could be a prolonged battle or the Senate Majority Leader could decide to take preemptive action and use the same tactics employed during the 113th Congress to further amend the filibuster rule to make it possible for a new Supreme Court justice to be confirmed with 51 votes. However, Senate leaders have indicated a disinclination to embrace that route.

Regardless of the outcome, the ABA will continue to urge the political branches to put politics aside and to engage in a concerted, sustained, and cooperative effort to fill judicial vacancies promptly.

Historical Note: Filibuster Rule Change and Reprisal. Halfway through the 113th Congress, then-Majority Leader Harry Reid invoked the “nuclear option” to enable the Democrats to change the Senate’s Standing Rule regarding filibusters by a simple majority vote rather than the 67 votes (i.e., a supermajority vote) that is normally required to change a Standing Rule. As a result of this successful procedural move, the Senate adopted a new filibuster rule that gutted the threat of the filibuster by lowering the threshold for cloture on all executive branch and judicial nominees except for Supreme Court nominees from 60 votes to a simple majority. Even though the filibuster rule change guaranteed that Democrats could invoke cloture and schedule floor votes, Republicans struck back by making Senator Reid file a cloture motion on every nomination brought to the floor, a tactic aimed at tying up valuable floor time. Nonetheless, the filibuster rule change resulted in a flurry of judicial confirmations, which significantly reduced the number of vacancies by the end of the Congress. It also dramatically increased discord and partisanship and set the stage for what many have called “payback” time during this 114th Congress. For additional information about last Congress please click here.

Key Points

The Administration and the Senate must make the prompt filing of federal judicial vacancies an ongoing priority. The political branches should resolve to work cooperatively and across the political aisle to make lasting progress in filling vacancies in a timely fashion.

Persistently high numbers of judicial vacancies deprive the nation of a federal court system that is equipped to serve the people. This has real consequences for the financial well−being of businesses and the personal lives of litigants whose cases may only be heard by the federal courts−e.g. cases involving challenges to the constitutionality of a law, unfair business practices under federal antitrust laws, patent infringement, police brutality, employment discrimination, and bankruptcy.

Expediting Nominations

The Administration and Members of the Senate should work together to shorten the time between vacancy and nomination, especially for those vacancies classified "judicial emergencies."

Senators should be prepared to identify potential nominees and to submit recommendations to the President as early as possible in the process.

Expediting Confirmations

The Senate Judiciary Committee should hold hearings on judicial nominees in a timely fashion.

The Senate should give every nominee an up-or-down vote within a reasonable time after the Senate Judiciary Committee reports the nomination.

114th Congress Charts

Judicial Emergencies. This chart, prepared by the Administrative Office of the U.S. Courts (AO), lists the vacancies it considers to be “judicial emergencies,” based on the length of time the seat has been vacant and the caseload of the court.

Future Vacancies. This AO chart lists the Article III judges who have provided advance notice of the date on which they intend to leave active service. The Judicial Conference of the Unites States encourages – but does not require – district and circuit court judges to provide 12 months advance notice. In addition to those announced in advance, vacancies will arise during the course of the year as a result of judicial elevations, resignations, deaths and other unanticipated circumstances.

Vacancies Without Nominees. This chart, prepared by the Alliance for Justice (AFJ), tracks every current and announced future judicial vacancy for which there is no nominee. While it notes the controlling senator(s) for each vacancy, it does not state whether the senators have submitted to the president their recommendations for nomination to district court vacancies. The ABA has not verified its accuracy.